Intestacy & the forfeiture rule

The forfeiture rule precludes a person who has unlawfully killed another person from acquiring a benefit in consequence of the killing: s3 Forfeiture Act 1993 (NSW)(“the Act”).

Where there is an unlawful killing that does not involve murder and the Court is satisfied that justice requires such modification, ss 5 and 6 of the Act provides that it may modify the effect of the forfeiture rule subject to such conditions as the Court thinks fit.


Yiquing Wang died intestate on 24 October 2018, aged 36, as a result of injuries sustained in a motor vehicle accident in a car driven by her husband, Weimin Lu (husband). Under s112 of the Succession Act, a spouse is entitled to the whole of the deceased’s intestate estate. In this case, however, the forfeiture rule applies.

Yiquing, an only child, is survived by her husband, their young son and her parents, who had migrated to Australia from China. The husband plead guilty to dangerous driving occasioning death, and dangerous driving occasioning grievous bodily harm.

In June 2020, the husband was convicted and sentenced to two years and two months to be served in the community under the supervision of Community Corrections.

The proceedings

In Wang v Estate of Wang; Lu by his tutor Fang v Lu: [2021] NSWSC 717 the son sought a declaration that the forfeiture rule apply and that the administration of the deceased’s estate be granted to his guardian until he attained the age of 18 years. Additionally, the grandparents commenced proceedings to recover monies allegedly loaned to the deceased and for testamentary and funeral expenses.

The parties informed the Court that they had reached an agreement and the grandparents had withdrawn their objection to the settlement of the Probate proceeding; including an agreement in relation to the deceased’s superannuation. However, the Court must be satisfied that justice requires the rule to be modified: s5(3) of the Act.

The decision

The Court held that the husband’s conduct involved serious offences with criminal consequences. However, the motor vehicle collision which led to the deceased’s death was a tragic accident, with the husband showing considerable remorse. Additionally, there was no suggestion that the deceased’s death was premeditated or that the husband had sought to profit from it.

The major asset of Yiquing’s estate was the family home that the husband had made substantial financial contributions toward and where he lives with his son for whom he is the primary caregiver. The husband demonstrated that he has a real financial need for himself and his son; has limited financial resources and is unemployed.

The Court was satisfied that justice requires the forfeiture rule to be modified in this case to entitle the husband to the whole of the deceased’s estate, including the benefit he may receive with respect to the deceased’s superannuation and life insurance policy.

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